2008 PLP 322 (CLC)

SYED HUSSAIN MAZHAR KALEEM, J.

The above titled appeals have been directed against the order of Judge Family Court Rawalakot dated 13-4-2005, whereby the custody of Aruba Jahanzeb was .given to the mother while the father was held entitled to the custody of Mst. Zaiba Jahanzeb.

2. Brief facts forming background of the appeal are that appellant and respondent were married. Out of this wedlock Zaiba Jahanzeb and Aruba Jahanzeb were born. Later on the Jahanzeb Khan divorced Zubaida Khanum. She moved an application for the custody of the minors before the trial Court. The court decided the application on 31-7-2004 in the manner that both the mother and the father were entitled to the custody of minors. On appeal from the said order, the case was remanded by this court vide its order dated 29-12-2004, wherein it was observed that Trial Court has not given any cogent reason in support of its order to the extent of joint custody and also ignored the question of welfare of minors and it was directed that the Trial Court shall decide the case in light of the above mentioned observation.

3. In view of the aforesaid direction, the Trial Court after reconsidering merits of the case handed over the custody of Mst. Zaiba Jahanzeb to her father while the mother was held entitled to the custody of Aruba Jahanzeb through the impugned order, hence these appeals.

4. I have heard the learned counsel for the parties and gone through the record of the case.

5. It may be mentioned here that while deciding the question of Guardianship and custody of a minor under sections 17 and 25 of Guardians and Wards Act, the paramount consideration would be welfare of a minor. The provisions of personal law to which a minor is subject, should be the guideline for entitlement of the custody which is further subject to two limitations, (i) Provision of section 25 and (ii) welfare of the minor. If consideration of welfare of a minor or the conclusion arrived at in consequence of the guideline in the sections make it impossible to follow the guideline of personal law then the same may be abandoned and steps most conducive to the welfare of a minor should be, taken. If the personal law is not inconsistent then it should be followed. While appreciating the welfare, it has to be seen that the welfare includes moral, spiritual and material well being and a Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and preference of the minor if he or she is intelligent enough to make it. It may also be added here that father being a natural guardian is responsible for the maintenance of minor but while deciding the question of custody, the mother must be preferred because of warmth of affection. 7.(sic) In the present case, the custody of Zaiba Jahanzeb was handed over to the father. The perusal of record shows that he did not file any application claiming the custody. Besides she was being looked after by her grand-mother and aunt. Thus there was no justification to hold that the father who neither claimed the custody nor was able to look after the minor himself was entitled to the custody. Therefore the impugned judgment is amended and Mst. Zubaida Khanum is also held entitled to the custody of Zaiba Jahanzeb.

8. The upshot of the above discussion is that appeal filed by Jahanzeb Khan is dismissed while that of filed by Mst. Zubaida Khanum is accepted. H.B.T./41/Sh.C.(AJ&K) Order accordingly.